A Troubling New Legal Standard for Section 706

[Commentary] The DC Circuit in Verizon v. Federal Communications Commission issued its much-anticipated ruling on the FCC’s Open Internet Order. In this decision, the court found that because the FCC had determined that broadband is not being deployed on a reasonable and timely basis to all Americans, Section 706 of the 1996 Telecommunications Act vests the agency “with affirmative authority to enact measures encouraging the deployment of broadband infrastructure” and, by extension, the power “to promulgate rules governing broadband providers’ treatment of Internet traffic.”

While the court remanded both the “no blocking” and “non-discrimination” portions of the Open Internet Order, make no mistake: this decision is a significant victory for the FCC. By accepting Section 706 as an independent grant of jurisdiction, the court has greatly expanded the agency’s regulatory authority over the Internet and over broadband service providers. Indeed, Verizon v. FCC was a tremendous victory for network neutrality generally, settling, at least from a precedential perspective, the longstanding dispute about whether such regulation is even needed.